OCR Text |
Show discretionary authority exercised. This will promote greater certainty in the administrative process, which is at the heart of any legal system. It will also f acilitate congressional oversight to determine whether policies are being carried out in accord with congressional intent. Where administrative implementation is revealed only, or largely, in a multitude of unrelated and usually factually distinguishable case adjudications (as in the case of Bureau of Land Management functions), this type of congressional review often becomes futile. Such regulations should include those portions of the voluminous unpublished agency staff manuals and instructions which often contain indispensable informations for an understanding of the policies and operations of the agencies. Past experience indicates that some device is necessary to compel the agencies to issue meaningful regulations instead of mere paraphrases of statutory language. Consequently, we recommend that agencies be prohibited from adjudicating any case other than in accord with standards and interpretations contained in published regulations. Where Congress has provided statutory rights, the agencies should be prohibited from denying the right on any grounds not stated in the regulations. With respect to discretionary cases, agencies could not exercise "reserved discretion" for the first time in particular adjudications. Rather, deviation from published standards could only be accomplished through a rulemaking procedure. We feel that the possibility of occasional unforeseen results in unique cases is outweighed by the advantages of carrying out policy under firm, clearly stated regulations. Since the rulemaking function is quasi-legislative in character, its exercise should be prospective and not retroactive. The existing rulemaking machinery and procedures of the public land agencies are inadequate to implement the enhanced role we recommend for substantive regulations in policy formulation and implementation. Deliberately instituted and specially staffed organizations are essential. This should be an integral part of policymaking and not be relegated to the clerical or housekeeping level. Similarly, the agencies must be directed to respond to the increasing need and demand for greater public participation in public land decision making. The Administrative Procedure Act of 19462 contains mandatory guidelines for rulemaking procedures generally requiring public notice and opportunity for the submission of comments and views by interested parties. However, since it exempts matters relating to "public property," 3 the public land agencies, other than the Federal Power Commission, have not considered themselves subject to the Act's rulemaking criteria. Nevertheless, the Bureau of Land Manage- 2 5 U.S.C. §§ 1001-1011 (1964). 3 Id. at § 553. 252 ment has voluntarily followed the Act's requirements in most rulemaking actions. The Forest Service has not employed such formalities, but in practice has developed its more important regulations with a significant degree of informal communication with organizations interested in national forest policy. We find no good reason why rulemaking provisions similar to those contained in the Administrative Procedure Act should not be made applicable to the public land agencies, particularly in light of the exception which permits such formalities to be dispensed with "when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." 4 A statute specifically applicable to public land would be preferable to deletion of the "public property" exemption of the Administrative Procedure Act, which might have unintended consequences affecting nonpublic land functions of Federal agencies. We also recommend greater use of public hearings where regulations are being developed in significant policy areas, as was required in the Classification and Multiple Use Act of 1964.5 Advisory Boards Citizen advisory boards should be used to advise the heads of the land administering agencies on public land policymaking. We believe there is substantial value in bringing a representation of citizen views into continuing and formal contact with public land policymakers through the use of national public land policy advisory boards which we recommend be established in Chapter Twenty. A board's primary function would be to advise the head of the agency on contemplated changes in any and all aspects of public land policy, whether by regulation or legislation. Although this policy advisory board could also be looked to for advice on other matters, such as specific controversial land use matters, its functions would be primarily to advise on board policymaking applicable to the agency's public lands throughout the Nation. We contrast this function with the role we have recommended for advisory boards at the field level: To advise on specific public land use plans as they affect various interests at the regional and local level. Like our own Advisory Council, members of national boards or councils should be selected so as to represent a broad spectrum of national and regional groups. 4 Ibid. The Administrative Conference of the United States has recommended the elimination of the "public property" exemption. See the Conference's First Annual Report, Recommendation No. 16, p. 45 (1970). 5 43 U.S.C. §§ 1411-1418 (1964) as amended, (Supp. IV, 1969). |